Thursday, 5 December 2013

DOCTOR NOT A CRIMINAL , STOP CRIMINALIZATION IN MEDICAL PRACTICE WHICH CAN CAUSE THE DEFENSIVE / PASSIVE MEDICINE

DOCTOR NOT A CRIMINAL , STOP CRIMINALIZATION IN MEDICAL
PRACTICE WHICH CAN CAUSE THE DEFENSIVE /
PASSIVE MEDICINE

By : Dr . Herry Setya Yudha Utama , Sp.B , MH.Kes , FinaCS ,
ICS

All agree that the major of crimes which included drug abuse
, murder , corruption and terror. Could
a physician whose practice medicine according to the standard operating
procedures referred to commit a crime because of the patient passed away ? Of
course not, because doctors implement their abbility have a license from the state agency KKI
Indonesian medical Council ..

Doctors are also human, not God and equal before the
law . Do doctors can be wrong ? ya can . whether doctors can be legal if ya can
commit crimes and be imprisoned as above . Is the doctor on duty can be
punished kedokteranya to practice and make mistakes ? yes definitely and should
be condemned and punished. Is your doctor currently face prison stints cult of
medicine and made ​​a mistake ? Certainly can not obey the rules of the current
law on Indonesian soil . Why Ayu doctor could be jailed ? It is questionable
whether it is proper laws enacted against Dr. Ayu ? The doctor is not God who
can determine the sick , cured and a person dies , the doctor is only the
intermediary . Unfair doctor only given two options when recovering physicians
Pasen survived from the law , if the disability or death Pasen doctor jailed .

Judges , justices , prosecutors , police are also human, not
God , could be wrong and mistaken in applying the existing law , he - he could have
misunderstood the principle of applying the principles and laws or any clause
or select existing laws Mangkanya reconsideration remedies etc. . If we obey
the law then we respect and seek to undergo a judicial process that is already
running and then we did the efforts of existing laws such as the PK .

In the history of thousands of years ago , there was a
Jew lying fainting incident on the streets . At that time , many khafilah /
Jews were passing through to where the Jews are lying . None of that would help
not because they do not pity , not because they are bad people , but because
they do not want to be accused involved in the case . They just glance at the
pass . Came a citizen Samariyah considered second-class citizen at the time .
Residents Samariyah through and saw the victim , then he touched and the Jews
ditolonglah and intends to be treated at home . At home , it turns out that the
Jewish people do not survive and died . Residents , leaders and rulers (
stakeholders law ) accused the local people as the cause of death Samariyah
Jews And until centuries - centuries people do not want to help people in
distress for fear of being accused . Until a century a century in the western
air indifferent , because it can help people be punished , so many victims -
victims . Many victims who should be helped and saved so that the aid can not
be beyond help .. Therefore , in America comes the legislation - legislation
" Good Samaritan 's Law" . To protect whoever is helping someone in
distress , that person will not be accused and punished especially in the field
of medicine . But socialization Good Samatiran 's Law is very tough in the
State - the State is already majupun . Moreover , in this country we love
hokumnya many officers who do not understand the laws of health / medicine .

Actually , if viewed from the eyes of the medical men died
99.9 % or 2000 % is not related to the helpfulness disease usually die from
complications related to the disease course and 0.001 % related to the helper
that too because of medical risks inherent in the patient's course of disease
and medical risks that must be understood by the patient and his family if he
decides that it's a medical procedure done and have a risk . Do not assume the
patient or the patient's family that all medical treatment must be 100 %
successful . Because it was the engagement of medical services engagement
initiative ( inspanding verbentenist ) instead of the engagement outcomes
(result verbentenist ) .

So if the patient died during surgery , the doctor could not
criminalized . Doctors should not be considered a criminal act. A doctor can
not and will not promise a cure , he just engagement initiative where doctors
are trying to act in accordance with the standards of medical care or Standard
Operating Procedures ( SOPs ) applicable place she works that are tailor made
which have been adapted to the circumstances and facilities owned by health
facilities (Hospital ) in accordance with its competence . SOP it tailor made
means made ​​to the hospital and the local line refers to the national / world
college of even the guidelines / literature principal and approved by the
director .

Death and failure are not fully become a doctor and
the doctor did not directly cause sought legal liability . If death was blamed
Hospital doctors only , then the entire world should be imprisoned doctor
because almost all physicians treating patients and patients never die . Almost
all public hospital anywhere in the world must have no patients who died in the
hospital . There was never a hospital that has a record of zero death . It is
not yet understood by law enforcement agencies in our country . It turned out
that starting from the very bottom of the apparatus namely from police as
investigators , prosecutors as prosecutors , judges as decision makers and the
Supreme Court / Supreme Court as the final decision-maker ( Inkrach ) not yet
fully understand the science of health law and medicine .

As we know , medical science is so deep and broad that
it is not easy for someone who does not study medicine with a clear
understanding of medical science that is not enough just to find out on the
internet or reading a book . Supposedly , in the process of medical malpractice
law enforcement must ask a fatwa in advance whether an event was a medical
malpractice or not , the IDI / Collegium / Indonesian Medical Council /
assembly code of medical ethics MKEK mainly to the Indonesian Medical
Disciplinary Board that God willing MKDKI honest it is . Supposed to cut ,
especially in the Supreme Court , the judges should be accompanied Adhoc Judge
who understand health and medical law so as to make the decision as fair - fair
and accurate - accurate .

It is mentioned in the law practice of medicine ( BFL ) no.
29 of 2004 Article 45, paragraph 1-6 that doctors in the medical act , required
to make informed consent. Where will inform you about actions performed medical
risks , complications , and alternative way of handling . The consent may be
oral in the case - a particular case and writing ( written consent ) to a case
- a case that is quite heavy . Especially for children , informed consent by
the parents . For the adults , with private patients and allowed no witnesses .
For unconscious patients , fainting / loss of consciousness with the approval
of the family and guardian / curator . Patients who are married , those
patients who have the right to give consent unless some things must be
accompanied by example in a sterile husband . Informed consent in emergency
patients , it remains important but not a priority although important , the
implementation of informed consent in emergency cases should not be a barrier
or obstacle to doing Emergency Care . BFL also the explanation of article 45
and Decree No. 585 in a state of emergency that informed consent was not done .
Various jurisprudence in developed countries have similarities principle that
emergency care actions can be performed without informed consent and the State
guarantees and protects health workers who are sworn to perform emergency
actions . Permenkes although this does not include a hierarchy of laws - laws
dikita . But this could be a clue Permenkes in the technical regulations -
regulations applicable in Indonesia . Actually after Act - Act No. Medical
Practice . 29 of 2004 which regulates the ins and outs of Physicians and
Dentists Practice in Indonesia promulgated in the State Gazette and included
law enforcement agencies shall be guided by the law - this law in the case -
the case of the Practice of Medicine . Unfortunately apparatus - our law
enforcement agencies that do not understand the many law - this law so that if
there is a medical malpractice case they use the criminal law / civil ansich
common . For example , using the Article 359-361 of the Criminal Code that
whoever is negligent and caused the death of others convicted criminal . This
is a general provision , which this article is rubber articles and chapters *
waste basket * all affairs go to this article . Why law enforcement agencies
still use Regulations - general invitation ? Not many people know the answer .
Should law enforcement agencies put legislation - special invitation context.
Is not " derogate Lex Lex Speciale Generale " provisions - Act
specifically / remove special provisions - the common law . If Article 359 is
also the basis for prosecution would be used dr . Ayu , dr . Hendrik
simanjuntak , and dr . Hendri Siagian then the judge must be able to prove a causative
relationship between the defendant to cause death . As reported that dr . Ayu
et al prosecuted for negligence as follows .

Dr. . Ayu negligent because it did not do an EKG before
surgery . It can be refuted as the cause of death . Because ECG is not required
for cases - cases and although surgery Cito examination , yet the reading is
not dr . Ayu . ECG is also monitored dikamar existing operations . So if the
reason because there is no ECG is not a causal relationship - as a result of
the negligence of the cause of death . Likewise to say that dr . Ayu et al did
not undergo X-ray examinations before surgery . And that's not negligence
causing death . Two charges of negligence is actually strange because X-ray
examination is contraindicated in pregnant women and very avoidable . Pregnant
women rarely X-rayed because it is harmful to the fetus . So negligence because
no X-ray examination before surgery was not the cause of the cause of death .
There is no relationship between cause of death in Pasen with no x-rays to
surgery Cito kebidananan . When dr . Ayu et al say negligent for not having SIP
, in Permenkes and BFL Article 36 explained that the SIP for PPDS ( Medical
Education Program Specialist ) that collectively administered by the University
and the Hospital so that is not the sole responsibility of the per - person
residennya . While it is true does not have SIP , such negligence was not a
cause of death of these patients . According to the autopsy report that the
cause of death is air embolism , and embolism are complications / medical risks
that are difficult to predict so that anyone and anything as good as the
operator will not be able to predict . Embolism is also not caused by the
defendant . So here seen that although there are omissions have no causative
relationship with death Pasen so there is no causal link between the negligence
in death . So that the application of Article 359 of the Criminal Code in cases
even this is not right .

According to Goldstein , Freud and Solnit argues that emergency
medical action can be done if :

1 . Teurapetic medical action is not experimental ,

2 . The medical action can lead to death if not performed ,

3 . Medical action gives hope for life

and Criminal Code Article 531 says that whoever to see
people in a state of grave danger not provide help that can be given to him
without proper pose a danger to themselves or others , threatened , if that
person later died , with maximum imprisonment of three months or a fine of many
..................... and BFL section 51 a doctor must conduct emergency relief
on the ground of humanity . So the doctor pinched otherwise subject to this
chapter to help , then help the deceased taxable Article 359 . Surely the law
does not mean put it this way , if everyone here makes it very difficult .

In America 's Good Samaritan Law applies , namely laws that
provide immunity from lawsuits when doctors make mistakes is not how big ( not
gross Negligent )

As for the medical treatment that requires informed consent
by ( Roach , Chernoff , Esley , 1986) are :

1 . Major or minor invasive surgery .

2 . All procedures that involve; more than slight risk of
harm .

3 . All forms of radiological therapy .

4 . Electro - convulsive therapy

5 . All experimental procedures .

6 . All procedures for the which consent forms are required
by statute or regulation .

And all of it can fall when in an emergency .

According to the World Medical Association in 1992

Medical Malpractice involves the physician 's failure to
conform to the standard of care for the treatment of the patient 's condition ,
or lack of skill , or negligence in providing care to the patient, the which is
the direct cause of an injury to the patient .

Here we can see that this medical malpractice must be no
direct connection between the cause of the impact .

According to the Law - Medical Practice Act No. 29 of 2004
on Medical Practice on the Right Doctor

1 . Obtain legal protection throughout the task in
accordance with professional standards and standard operating procedures .

3 . Obtaining a complete and honest information from
patients or their families , and

4 . Receive payment for services .

Therefore , physicians should be protected by the state in
carrying out medical care , because if not protected and considered criminal ,
then the doctor will not be confident and feel - feel free in their profession
, and will not do because it can harm themselves . If the doctor is not
protected it will appear Defensive / Passive Medicine medicine , where doctors
prefer to look for a safe and just working on the case - a case that risk is
small, so she is not exposed to criminal ( ASA 1 and ASA 2 in the
classification of Anesthesia ) . Forms of Defensive Medicine physicians are
also shaped so passive in performing medical procedures that the medical world
will not evolve even going backwards . And society itself will lose money as a
result of defensive medicine . There must be no incidence of defensive medicine
like this in a hospital in Indonesia :

Badu : No dock accident , the man did not notice . Please
yes dock

Doctor : fast here ... where where ? family family .

Badu : for what dock ?

Doctor : eh important to ask permission action la bla bla

Badu : where the family well , where keteheee ?

Doctor : first police report ih

Badu : dokteeeeerrrr for what ?

Doctor : yes to find his family .

Badu : emergency .. emergency dock just do your best

Doctor : best to Pasen not necessarily what's best for my
family again according to the judge , the prosecutor or the police . Later I
hit chapter 359 how? Sapa is nolong

Badu : so I have to ask permission to court for actions
doctor yes , gini so complicated now ,

Therefore , where the duty of the State to ensure a
professional running , should without having haunted - haunted by the threat of
state as well as to protect the public from crime uncontrolled profession by
forming teams of medical audit .

A court ruling should not impact negatively impacted
positively . Because if this decision really - really approved will have a
negative impact on medicine and society also causes impaired because of the
defensive / passive medicine as well as the public would also like to once to
sue the doctor ( litigeous ) . So that arrears cases in MA that has tens of
thousands it will become swollen . The deviation - deviation of malpractice
should be monitored closely by a doctor mediknya committee so that it can be
determined whether the doctor did make a mistake or just a history of the
disease ( Adverse Events ) .

If the incidence of this medical tragedy in the Hospital and
is implementing specialist candidates ( PPDS ) in the institution of schooling
Hospitals and educational institutions are also partially responsible for not
only it's own personal physician . Moreover, according to the Law - Law
Hospital there are certain obligations that must be fulfilled so that patients
and doctors alike - equally safe .

DOCTOR not immune to LEGAL AND SHOULD NOT differentiate
CITIZENS WITH OTHER PROFESSIONALS RUN AGAIN BUT IF - grazed brinkmanship LIFE ,
THEN DOCTORS AND OTHER HEALTH OFFICER SHOULD BE RESERVED FOR HELPING intention
, IF THERE IS A DOCTOR WHO INTEND TO KILL Pasen PROVEN PLEASE BE CONDEMNED .

Because doctors are not above the law then any doctor
who violate the SOP should be punished and should be dealt with but the
punishment was not imprisonment. Many types of punishment for such physicians
license revoked , canceled STR , reschooling , fines , dismissed from their
employment etc but it is clear penalties for doctors above error while running
practice physician kedokteranya according to the existing laws in Indonesia
confinement NOT AGENCY , PLEASE CHECK THE RULES CAREFULLY .

Doctors who make mistakes in carrying out the profession
must be dealt with but the act and the punishment is not a body cage ( jail )
because in BFL No. 29 has been removed cage body ( judicial review in 2007 ) so
the judges who decide cases confinement body for the practice of medicine is
definitely not an update . Is this a sign that the district court judge who is
more senior in the update of the supreme court ? In fact, there are
high-ranking state officials said is not fit and without a proper legal basis
in this case even with a doctor there who equate auto mechanic .. in fact there
is a moderator on TV Massih still read the old BFL is not in a judicial review
.

So doctors could be convicted if the hospital violate
SOP or committing a crime or offense - a violation that has nothing to do with
the practice of medicine .

Referring to the case of the death of Michael Jackson
, the doctor was convicted because he injected anesthesia medication Propofol
similar procedure that should only be injected at the Hospital . While the
Supreme Court decision stating that the number 365K/pid/2013 doctors blamed and
punished by confinement is not Law - Law Practice of Medicine that has
conducted judicial review in 2007 in which no doctor's body imprisonment for a
case - the case of the practice of medicine . So with the decision that Doctor
with Dentists in Indonesia become restless because they feel criminalized .

If the doctor really does not have a SIP blamed for
administrative violations rose by BFL already in yudicial review in 2007 and
2052 as well as the Minister of Health Hospitals Act no 44 th 2010, not a
prison sentence and is not affected by any physician is concerned it should be
subject to even more directors weight

So in the case of the doctor SpOG Manado irregularities -
awkwardness and need further investigation of what really happened . Both on
the part of doctors , Pasen , lawyers , hospitals and judge. Independent state
agency such as the KKI had to come investigate .

Conclusions and Recommendations

- Enforcement of the law in the case - medical malpractice
cases , must consider the Law - Law practice medicine rather than law - law
books and general criminal law should IDI / MKEK / MKDKI and Collegium more
active in dealing with the case - the case of medical practice that can
separate those that exactly where the violation of criminal and administrative
violations of ethics . Because violations of medical malpractice that no agency
or prison confinement .

- Law enforcement officers , police , prosecutors , judges ,
especially Supreme Court justices should be more familiar term health law and
medicine - the medical term so no misinterpretation of the law so that it can
deliver justice better and better handling medical malpractice was carried out
specifically where the actual diperadilan the court or the Supreme Court enter
Adhoc judges are members who know about medical health care law so that the
decision is more appropriate .

- For cases in Manado SpOG as law-abiding people we have to
follow the legal remedies that can be implemented , is 'm Review (PK ) in the
Supreme Court and because the penalties are not more than 5 years in prison
then the doctor should be detained until a decision can not OD .

- It is suggested the Supreme Court should not be shy to hold
in-depth analysis by invited experts LEGAL , MEDICAL experts and specialists
LAW HEALTH / MEDICAL so opinions / statements of the experts can be considered
to be the basis of the new novum decision sehungga decision completely accurate
and justice .

- This event is a very valuable lesson for us all , for the
law enforcement agencies and especially for the doctors to work more carefully
, and improve the quality of communication with patients and families of
patients . Also better at providing services appropriate standards /
procedures.

I quote the Koran verse about justice :

" AND DO NOT YOU HATE TO MAKE YOU SOMETHING
PEOPLE DO NOT APPLICABLE UNFAIR , be fair BECAUSE It CLOSER TO TAQWA . [ QS .
Al Maidah , verse 8 ]